Delhi District Court
Shankar Rai, Devaki Rai And Aditya Rai vs . Munir Alam @ Mama & Ors. Page 1 Of 27 on 3 March, 2023
MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
IN THE COURT OF SHRI VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 218/17
UID/CNR No. DLNT010028282017
Sh. Shankar Rai,
S/o Sh. Rudal Rai,
R/o B45, Gali No. 3,
Rajeev Nagar,
Bhalswa Dairy,
Delhi.
(Injured)
VERSUS
1. Sh. Munir Alam @ Mama,
S/o Sh. Abdul Rahim,
R/o Jhuggi No. A122,
Kalandar Colony,
Bhalswa Dairy,
Delhi.
(Driver)
2. Sh. Bhagwati Prasad,
S/o Sh. Ram Swaroop,
R/o B32, J.J. Colony,
Delhi.
(Registered owner)
3. Liberty Videocon Insurance Co. Ltd.
10th Floor, Aggarwal Cyber Cafe Plaza,
Netaji Subhash Place,
Pitampura,
Delhi.
(Insurer)
........Respondents
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 1 of 27
MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
AND
MAC Petition No. 216/17
UID/CNR No. DLNT010028312017
Smt. Devaki Rai. ,
W/o Late Sh. Rudal Rai,
R/o B45, Gali No. 3,
Rajeev Nagar,
Bhalswa Dairy,
Delhi.
(Injured)
VERSUS
1. Sh. Munir Alam @ Mama,
S/o Sh. Abdul Rahim,
R/o Jhuggi No. A122,
Kalandar Colony,
Bhalswa Dairy,
Delhi.
(Driver)
2. Sh. Bhagwati Prasad,
S/o Sh. Ram Swaroop,
R/o B32, J.J. Colony,
Delhi.
(Registered owner)
3. Liberty Videocon Insurance Co. Ltd.
10th Floor, Aggarwal Cyber Cafe Plaza,
Netaji Subhash Place,
Pitampura,
Delhi.
(Insurer) ........Respondents
AND
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 2 of 27
MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
MAC Petition No. 217/17
UID/CNR No. DLNT010028292017
Master Aditya Rai,
S/o Sh. Shankar Rai,
R/o B45, Gali No. 3,
Rajeev Nagar,
Bhalswa Dairy,
Delhi.
(Injured)
VERSUS
1. Sh. Munir Alam @ Mama,
S/o Sh. Abdul Rahim,
R/o Jhuggi No. A122,
Kalandar Colony,
Bhalswa Dairy,
Delhi.
(Driver)
2. Sh. Bhagwati Prasad,
S/o Sh. Ram Swaroop,
R/o B32, J.J. Colony,
Delhi.
(Registered owner)
3. Liberty Videocon Insurance Co. Ltd.
10th Floor, Aggarwal Cyber Cafe Plaza,
Netaji Subhash Place,
Pitampura,
Delhi.
(Insurer)
........Respondents
Date of Institution : 03.03.2017
Date of Arguments : 24.02.2023
Date of Decision : 03.03.2023
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 3 of 27
MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
APPEARENCES
Sh. R.K. Jain, Ld. Counsel for the all the petitioners in all thre cases.
None for driver and owner.
Ms. Sunanda Nimisha, Ld. Counsel for insurance co.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD
1. Vide this common order, I shall dispose of all the three Detailed
Accident Reports (DAR) with regard to injuries sustained by Sh. Shankar
Rai, Smt. Devaki Rai and Master Aditya Rai (injured in MACP Nos. 218/17,
216/17 & 217/17 respectively) in Motor Vehicular Accident which took place
on 31.08.2015 at about 8:15 pm near Red Light, Shah Alam Bandh,
Mukundpur to Azadpur, Jahangir Puri, Delhi, involving Auto (TSR) bearing
registration no. DL1RQ7314(offending vehicle) being driven in a rash and
negligent manner by its driver(Respondent no.1 herein).
2. All the three DAR petitions were consolidated for the purpose
of recording of evidence vide order dated 18.01.2019, passed by my Ld.
Predecessor and MACP No. 218/17 titled as " Shankar Rai Vs. Munir
Alam @ Mama & Ors" was treated as the leading case. Accordingly, the
evidence was led on behalf of the parties in the leading case.
FACTS OF THE CASES
3. According to Detailed Accident Reports (DAR) filed in all the three cases, on 31.08.2015, all the petitioners and child Baby Nandani had Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 4 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 been going to Punjabi Bagh from their residence in offending vehicle which was being driven by its driver/respondent no. 1 at a very high speed, in a rash and negligent manner. At about 8:15 PM, when the offending vehicle reached near Red Light Shah Alam Bandh, Mukundpur to Azadpur, Jahangir Puri, Delhi, its driver/respondent no. 1 dashed its front portion against the back portion of a standing car on the red light signal, as a result of which, all the petitioners sustained injuries. They all were removed to BJRM Hospital, Jahangir Puri, Delhi. FIR No. 777/15 u/s. 279/337 IPC was registered at PS. Jahangir Puri with regard to the said accident. It is claimed that offending vehicle was owned by respondent no. 2 and insured with Liberty General Insurance Co. Ltd./respondent no. 3 during the period in question.
4. In all the three cases, the respondents no. 1 & 2 i.e. driver and registered owner failed to file their WS despite grant of sufficient time and opportunities. Consequently, their defence was struck off vide order dated 12.05.2017.
5. In its identical but separate Written Statements filed in all the three cases, the respondent no. 3 i.e. insurance company raised statutory defence as provided in Section 149(2) of M.V. Act by claiming that respondent no. 1 was not having valid and effective driving licence(DL) at the time of accident and as such, it is not liable to pay any compensation to the petitioners in the present case. However, it has been admitted that Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 5 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 offending vehicle was insured with it at the time of accident. On the basis of these averments, it has prayed for dismissal of all the DARs.
6. From the pleading of the parties, the following issues were framed in all the three cases bearing MACP No. 218/17, 216/17 & 217/17 separately by Ld. Predecessor vide order dated 12.05.2017 :
1) Whether the injured Shankar Rai, Smt. Devaki Rai and Master Aditya Rai suffered injuries in road traffic accident on 31.08.2015 at 8:15 PM near Red Light Shah Alam Bandh Mukundpur to Azadpur, Jahangir Puri, Delhi, within the jurisdiction of PS. Jahangir Puri due to rashness and negligence on the part of Munir Alam @ Mama/R1 who was driving the Auto bearing registration no. DL1RQ7314, owned by Sh. Bhagwati Prasad/R2 and insured with Liberty Videocon Insurance Co. Ltd./R3?
OPP.
2) Whether the injured persons are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
7. In order to establish their claim, the petitioners have examined four witnesses i.e. PW1 Sh. Shankar Rai, PW2 Smt. Devaki Rai, PW3 Ms. Mamta Rani, Statistical Assistant, BJRM Hospital, Jahangir Puri, Delhi and PW4 Dr. Sanjay Kumar, Specialist Orthopedics, Bhagwan Mahavir Hospital, Delhi and their respective evidence was closed vide order dated Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 6 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 18.10.2022. On the other hand, no evidence was adduced by respondent no. 1 & 2. However, the respondent no. 3 has examined one witness i.e. Sh. Roshan Kumar Thakur as R3W1 and its evidence was closed vide order dated 14.02.2023.
8. I have heard the arguments advanced by Ld. Counsels for the parties. My findings on the issues are as under: ISSUE NO. 1 ( IN ALL THE CASES)
9. For the purpose of this issue, the testimonies of PW1 & PW2 (injured persons) are relevant. They both deposed in their respective evidence by way of affidavit (Ex. PW1/A to Ex. PW2/A respectively) on the lines of averments made in the DAR.
10. PW1 Sh. Shankar Rai has relied upon the following documents: Sr. No. Description of documents Remarks
1. His medical treatment record Ex PW1/1(colly)
2. His original medical bills filed Ex. PW1/2(colly) alongwith the DAR
3. His salary slip, leave Ex. PW1/3(colly) certificate and certificate regarding nonreimbursement of medical expenses by his employer
4. Copy of his mediclaim policy Ex. PW1/4(colly) Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 7 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 and receipt regarding payment of premium of Rs.
5126/
5. Copy of his bank passbook Ex. PW1/5(colly) containing relevant entries regarding payment of salary in his account
6. Copies of his educational Ex. PW1/6(colly) certificate and copy of his licence to work as Electrician issued by Delhi Government
7. Copy of his Aadhaar Card Ex. PW1/7
8. Emergency Registration Card Ex. PW1/8 of BJRM Hospital of his minor son Aditya Rai filed alongwith the DAR
9. Certificate dated 25.02.2017 Ex. PW1/9 issued by School Authority of his minor son as filed alongwith the DAR regarding his absence from school for 5 days
11. During his crossexamination on behalf of insurance company, he deposed that the offending vehicle had been hired by him from Bhalswa Dairy to Punjabi Bagh. He further deposed that he alongwith his mother and two children namely Nandani Rai and Aditya Rai were travelling as passenger in the aforesaid TSR. He deposed that all the passengers were sitting on the back seat of TSR and nobody was sitting with driver on his Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 8 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 seat. He denied the suggestion that driver Munir Alam was not driving offending vehicle rashly and negligently. He deposed that he had not noted down the number of car against which the offending vehicle had struck as he was busy in helping his children and mother who were injured in the accident. He further deposed that before accident, he had seen that there was red light and a car was also standing on the red light against which the offending vehicle had struck. He deposed that the speed of offending vehicle was about 8090 kmph at that time. He denied the suggestion that the accident had taken place due to the fault of car which had been standing on the red light. He further deposed that around 810 vehicles were standing at the red light signal.
12. PW2 Smt. Devaki Rai has relied upon copy of her MLC alongwith OPD Card of BJRM Hospital exhibited as Ex. PW2/1(colly). During her crossexamination on behalf of insurance company, she deposed that she was conscious after the accident and was removed to the hospital by PCR Van. She further deposed that she was discharged from the hospital on the same day after giving first aid. She deposed that she had not given any statement to the police.
13. The careful perusal of testimonies of aforesaid witnesses i.e. PW1 & PW2 would go to show that the respondents more particularly insurance company has not been able to impeach their testimonies through litmus test of crossexamination. Even otherwise, the testimonies of Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 9 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 aforesaid witnesses inspire confidence as they themselves shown to have sustained injuries due to the accident. Furthermore, it is an undisputed fact that FIR No. 777/15 u/s 279/337 IPC was registered at PS. Jahangir Puri with regard to accident in question. Copy of said FIR (which is part of DAR), would show that same was registered on 01.09.2015 (accident being caused on 31.08.2015 at about 8:15 PM) on the statement of PW1 Sh. Shankar Rai who is one of the injured in MACP No. 218/17. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of offending vehicle at the instance of petitioners herein.
14. Not only this, the respondent no. 1 namely Munir Alam @ Mama (accused in State case) has been charge sheeted for the offences punishable U/s 279/337 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had taken place due to rash and negligent driving of offending vehicle by him. Same would also point out towards rash and negligent driving of offending vehicle by respondent no. 1.
15. Copy of MLCs (which are part of DAR) of injured persons filed would show that they had been removed to BJRM Hospital, Jahangir Puri, Delhi with alleged history of RTA on 31.08.15. They are shown to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 10 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 Again, there is no challenge to the said document from the side of respondents including insurance company.
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that all the petitioners namely Shankar Rai, Devaki Rai and Aditya Rai have been able to prove on the basis of pre ponderence of probabilities that they had sustained injuries in the road accident which took place on 31.08.2015 at about 8:15 pm near Red Light Shah Alam Bandh, Mukundpur to Azadpur, Jahangir Puri, Delhi, due to rash and negligent driving on the part of driver of offending vehicle. Thus, this issue is decided in favour of petitioners and against the respondents in all the three DAR.
ISSUE NO.2
17. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Compensation in MACP No. 218/17 (Injured Shankar Rai) MEDICAL EXPENSES
18. PW1 Sh. Shankar Rai has deposed in his evidence by way of affidavit (Ex. PW1/A) that after the accident, he was taken to BJRM Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 11 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 Hospital, Jahangir Puri, Delhi, where he was medically examined and thereafter, on 01.09.2015, he was shifted to Jaipur Golden Hospital and was discharged from there on 03.09.2015. He further deposed that thereafter, he had visited the OPD of Jaipur Golden Hospital for about 6 to 7 times for regular checkup. He further deposed that he had sustained injuries in the accident. He deposed that he had spent Rs. 1,03,298/ on his medical treatment and out of which, he claimed the medical bills of Rs. 95,300/ from the insurance company under his mediclaim policy. He deposed that insurance company had reimbursed him the amount of Rs. 93,385/ and balance amount of Rs. 1,915/ was paid by him from his pocket. He further deposed that he had also spent Rs. 7,998/ on his treatment as OPD patient. He has relied upon medical bills Ex. PW1/2 (colly), certificate regarding nonreimbursement of medical bills by his employer which is part of Ex. PW1/3(colly), copy of his mediclaim policy and receipt regarding payment of premium of Rs. 5126/ Ex. PW1/4(colly). During his crossexamination on behalf of insurance company, he admitted that he had claimed medical bill of Rs. 95,300/ for reimbursement under his mediclaim policy.
19. It is relevant to note that the injured has relied upon medical bills as filed alongwith the DAR(Ex. PW1/2 colly). Petitioner has admitted in his crossexamination by insurance company that he had claimed Rs. 93,500/for reimbursement under his mediclaim policy and the same had already been reimbursed to him by insurance company. However, during Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 12 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 the course of arguments Ld. Counsel for petitioner argued that apart from the aforesaid amount petitioner had spent Rs. 9,913/ for his treatment. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 9,913/ is awarded to the petitioner under this head.
INSURANCE PREMIUM PAID UNDER MEDICLAIM POLICY
20. Ld. Counsel for petitioner vehemently argued that the amount of Rs. 5126/ paid by the petitioner for his mediclaim policy should be awarded to him under this head. For this, he has relied upon judgment passed by Hon'ble High Court of Delhi in case titled "Bajaj Allianz General Insurance Co. Ltd. Vs. Ganpat Rai Sehgal & Ors., MAC APP. 191/10, decided on 03.01.2012, wherein the Hon'ble Court has been pleased to hold in para no. 12 as under: xxxx "12. The Respondent No.1 would have paid some premium for the mediclaim policy, but the same hasnot been proved on record. I would make a guess work and grant him a sum of Rs.10,000/, as a reimbursement for the premium paid for the policy. The same shall be borne by the Appellant.
Xxxxx Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 13 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
21. In view of the aforesaid judgment passed by Hon'ble High Court of Delhi, I am in agreement with the contention raised by Ld. Counsel for petitioner in respect of grant of amount of premium paid by the petitioner for his mediclaim policy. It is apparent on record that the petitioner had paid a sum of Rs. 5126/ for his mediclaim policy and receipt thereof is Ex. PW1/4(colly). Thus, I award a sum of Rs. 5,126/ to the petitioner under this head.
LOSS OF INCOME
22. PW1 has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was working as Senior Technician with M/s. Banaco Overseas and was getting monthly salary of Rs. 30,000/ at the time of accident. He further deposed that he could not attend his duty from 01.09.2015 to 29.02.2016 due to the injuries suffered by him in the accident and thus, suffered loss of income. He has relied upon his original salary slip, leave certificate and certificate regarding non reimbursement of medical expenses by his employer Ex. PW1/3(colly). He further deposed that his salary was being directly transferred by his employer in his saving bank account and exhibited the copy of his bank passbook as Ex. PW1/5. During his crossexamination on behalf of insurance company, he deposed that his salary had been receiving by him in his saving bank account of HDFC and the copy of the same is Ex. PW1/5. He admitted that he had received Rs. 17,000/ as his salary on 10.06.2015 by way of transfer from the account of his employer into his account. He volunteered that he was Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 14 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 receiving some amount in cash also and his employer took his signature on vouchers when he paid salary in cash to him. He further deposed that he was still working in Banaco Overseas and was getting monthly salary of Rs. 36,000/. He denied the suggestion that he had not suffered financial loss due to disability.
23. Apart from the treatment record (Ex. PW1/1 colly) of petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. The bill (which is part of Ex. PW1/2 colly) of Jaipur Golden Hospital shows that petitioner was admitted in the said hospital on 01.09.2015 and was discharged on 03.09.2015. Considering the nature of injuries sustained by the petitioner and in view of the treatment record brought on record, it is presumed that he would not have been able to work atleast for a period of six months or so.
24. In order to prove the actual loss of income, the petitioner has relied upon his salary certificate (which is part of Ex. PW1/3 colly) and copy of bank passbook of his salary account(Ex. PW1/5 colly).
25. After referring to the testimony of PW1 and the documents filed by him, Ld. counsel for petitioner vehemently argued that last drawn monthly salary of petitioner may be taken as Rs. 30,000/ in order to calculate loss of income.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 15 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
26. On the other hand, Ld. Counsel for the insurance company argued that there is no concrete evidence led by petitioner to establish his monthly income. Thus, loss of income should be calculated on the basis of notional income as per Minimum Wages Act applicable during the relevant period.
27. As per the document i.e. Salary Certificate (Ex. PW1/3), petitioner Sh. Shankar Rai was working as Senior Technician with Banaco Overseas and was getting monthly salary of Rs. 30,000/. On the other hand, copy of bank passbook of petitioner reveals that an amount of Rs. 25,000/ was deposited in his bank account by his employer on 01.09.2015. The date of accident in the present case is 31.08.2015. Thus, it can be safely presume that petitioner was atleast getting Rs. 25,000/ per month at the time of accident. Thus, a sum of Rs. 1,50,000/ (Rs. 25,000/ x 6) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
28. Hon'ble High Court of Delhi in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 16 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
29. The petitioner has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Apart from this petitioner had also sustained permanent disability to the extent of 6% in relation to his right upper limb. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him including permanent disability, I hereby award a sum of Rs. 75,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
30. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. Apart from this petitioner had also sustained permanent disability to the extent of 6% in relation to his right upper limb. Thus, he would not be able to enjoy general amenities of life after the accident in question and his Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 17 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 quality of life has been definitely affected. In view of the nature of injuries and his continued treatment, I award a notional sum of Rs. 50,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
31. Ld. Counsel for petitioner argued that petitioner had spent considerable amount on special diet, conveyance and attendant charges but he has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid heads. At the same time, it cannot be overlooked that he had sustained grievous injuries in the accident in question. Apart from this petitioner had also sustained permanent disability to the extent of 6% in relation to his left lower limb. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 20,000/ each for conveyance charges and special diet and a sum of Rs. 25,000/ for attendant charges to the petitioner.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 18 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 LOSS OF FUTURE INCOME
32. The petitioner is shown to have sustained 6% permanent disability in relation to his right upper limb. Same is quite evident from Disability Certificate dated 05.03.2019 of Medical Board of BJRM Hospital, Delhi.
33. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner and his nature of work at the time of accident, his functional disability is taken as 6% with regard to whole body. (Reliance placed on "Arjun & Ors., Vs. IFFCO Tokio General Insurance Co. Ltd.", MAC Appeal No. 223/16, decided on 04.01.2018, Reliance General Insurance Co. Ltd. Vs. Malti Devi & Ors., in MAC. APP. 572/2012, decided on 20.05.2015, Bajaj Allianz General Insurance Co. Ltd. Vs. Shamim Akhtar & Anr, in MAC. APP. 616/2018 & C.Ms. 26742/2018, decided on 26.09.2018 and Bajaj Allianz General Insurance Co. Ltd. Vs. Nasruddin & Ors., in MAC. APP. 585/2012, decided on 28.05.2015 , decided on 28.05.2015", passed by Hon'ble High Court of Delhi.)
34. In copy of Aadhaar Card (Ex. PW1/7) of petitioner, his date of birth is mentioned as 01.03.1976. The date of accident is 31.08.2015. Thus, the petitioner was about 39 years of age on the date of accident. Hence, the appropriate multiplier would be 15 in view of judgment passed in Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 19 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 case titled as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The monthly income of petitioner has been taken as Rs. 25,000/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 1,500/ (Rs. 25,000/ x 6/100 ). The total loss of future income would be Rs. 3,78,000/ (Rs. 1,500/ x 140/100 x 12 x 15).
Thus, the total compensation is assessed as under:
1. Medical expenses Rs. 9,913/
2. Insurance Premium paid under Rs. 5,126/ mediclaim policy
3. Loss of income Rs. 1,50,000/
4. Pain and suffering Rs. 75,000/
5. Loss of general amenities and Rs. 50,000/ enjoyment of life
6. Conveyance, special diet and Rs. 75,000/ attendant charges
7. Loss of future income Rs. 3,78,000/ Total Rs. 7,43,039/ Rounded off to Rs. 7,43,000/ Compensation in MACP Nos. 216/17 (Injured Smt. Devaki Rai)
35. PW2 Smt. Devaki Rai has deposed in her evidence by way of affidavit(Ex. PW2/A) that she had also sustained injuries in the accident.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 20 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 During her crossexamination on behalf of insurance company, she deposed that she was conscious after the accident. She further deposed that she was discharged from the hospital on the same day after giving first aid. She deposed that she had not filed any record regarding amount incurred on conveyance, special diet and medical treatment.
36. It may be noted here that no medical bills of petitioner has been filed on record. Moreover, petitioner is found to have suffered simple injury as mentioned in her MLC. In view of the same, no amount can be awarded to the petitioner/injured under the head medical expenses.
37. The MLC (which is part of DAR) of BJRM Hospital, Jahangir Puri, Delhi of petitioner/injured Smt. Devaki Rai, would reveal that she had suffered simple injury in the accident. Keeping in view the medical treatment record of petitioner available on record, the discussion made herein above and since the nature of injuries suffered by her being not found to be grievous, I hereby award total notional amount of Rs. 35,000/ towards pain and sufferings, special diet, etc, to him.
Compensation in MACP Nos. 217/17 (Minor injured Aditya Rai)
38. PW1 Sh. Shankar Rai(Father of minor injured Aditya) has deposed in his evidence by way of affidavit(Ex. PW1/A) that his son had also sustained injuries in the accident.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 21 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
39. It may be noted here that no medical bills of minor injured Aditya Rai has been filed on record. Moreover, child Aditya Rai is found to have suffered simple injury as mentioned in his MLC. In view of the same, no amount can be awarded to the petitioner/injured Aditya under the head medical expenses.
40. The MLC (which is part of DAR) of of BJRM Hospital, Jahangir Puri, Delhi of petitioner/injured Master Aditya, would reveal that he had suffered simple injury in the accident. Keeping in view the medical treatment record of petitioner available on record, the discussion made herein above and since the nature of injuries suffered by him being not found to be grievous, I hereby award total notional amount of Rs. 35,000/ towards pain and sufferings, special diet, etc, to him.
41. This brings me down to the next question as to whether insurance company has been able to prove the statutory defence raised by it in its written statement, wherein it has claimed that respondent no. 1 was not having valid DL at the time of accident in question. In order to substantiate the said plea, the insurance company has examined Sh. Roshan Kumar Thakur, Manager (LegalTP), Liberty General Insurance Ltd as R3W1. He deposed in his evidence by way of affidavit (Ex. R3W1/A) that respondent no. 1 was not having valid driving licence at the time of accident and thus, insurance company is not liable to pay any compensation to the petitions. He has relied upon copy of chargesheet Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 22 of 27 MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 Ex. R3W1/1; copy of permit verification report Ex. R3W1/2; office copy of notice u/o 12 Rule 8 CPC Ex. R3W1/3; postal receipts in respect of dispatch of notice Ex. R3W1/4 & Ex. R3W1/5 and copy of insurance policy Ex. R3W1/6(colly).
42. As already noted above, the respondent no. 1/driver himself did not enter into witness box during the course of enquiry and he has failed to produce any valid DL in his favour as on the date of accident in question. Moreover, copy of chargesheet(which is part of DAR) filed in State case arising out of FIR No. 777/15 supra, would clearly show that respondent no. 1/driver namely Sh. Munir Alam @ Mama also been chargesheeted for offence punishable u/s. 3/181 M.V. Act by investigating agency after conclusion of the investigation. Copy of said chargesheet is also part of DAR, which carries presumption of genuineness of its contents as provided in Rule 7 of Delhi Motor Accident Claim Tribunal Rules, 2008. Even otherwise, the respondent no. 1 has not disputed the said document throughout the enquiry. Hence, I find substance in the submission made on behalf of insurance company that had there been any valid DL in favour of respondent no. 1 to drive the type of vehicle like the present one, copy thereof would have been provided by him to the police but no such copy of DL has been filed alongwith DAR or brought on record during the course of inquiry.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 23 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
43. In view of the aforesaid discussion, I find substance in the plea raised on behalf of insurance company that for want of valid and effective DL in favour of respondent no. 1 being proved on record, it would be termed as breach in the terms and conditions of insurance policy. Thus, insurance company is entitled to recovery rights against both the respondents i.e. driver and registered owner jointly and severally. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
44. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016.
a) A sum of Rs. 7,43,000/(Rupees Seven Lakhs and Forty Three Thousand only) (including interim award amount, if any) in MAC Petition No. 218/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 03.03.2017 till the date of its realization.
b) A sum of Rs. 35,000/(Rupees Thirty Five Thousand only) (including interim award amount, if any) in MAC Petition No. 216/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 03.03.2017 till the date of its realization.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 24 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
c) A sum of Rs. 35,000/(Rupees Thirty Five Thousand only) (including interim award amount, if any) in MAC Petition No. 217/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 03.03.2017 till the date of its realization.
Issue no. 3 is decided accordingly.
APPORTIONMENT
45. Statements of petitioners in terms of Clause 29 MCTAP were recorded on 09.01.2023. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that in MACP No. 218/17, the entire award amount of Rs. 7,43,000/(Rupees Seven Lakhs and Forty Three Thousand only) alongwith interest shall be immediately released to him through his saving bank account no. 41554459774, State Bank of India, Sri Nagar Colony, B1/10, Ashok Vihar, Phase 1, having IFSC Code SBIN0007783.
46. In MACP No. 216/17, the entire award amount of Rs. 35,000/(Rupees Thirty Five Thousand only) alongwith interest shall be immediately released to the petitioner through her saving bank account no. 41554462551, State Bank of India, Sri Nagar Colony, B 1/10, Ashok Vihar, Phase 1, having IFSC Code SBIN0007783.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 25 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023
47. In MACP No. 217/17, the entire award amount of Rs. 35,000/ (Rupees Thirty Five Thousand only) alongwith interest shall be immediately released to the petitioner through his saving bank account no. 41559980689, State Bank of India, Sri Nagar Colony, B1/10, Ashok Vihar, Phase 1, having IFSC Code SBIN0007783.
48. Respondent no. 3/Liberty General Insurance Co. Ltd., being insurer of offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective amounts of petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 26 of 27MACP Nos. 218/17, 216/17 & 217/17; FIR No. 777/15; PS. Jahangir Puri DOD: 03.03.2023 Signed copy of this Award be placed on the judicial record of MAC Petition Nos. 216/17 & 217/17 as per the rules.
Announced in the open Court on 03.03.2023 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 27 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Shankar Rai, Devaki Rai and Aditya Rai Vs. Munir Alam @ Mama & Ors. Page 27 of 27